Just days after Politico published the leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, Saturday Night Live opened with its own comedic analysis of the Supreme Court decision purportedly overturning Roe v. Wade. “Justice Samuel Alito explains that no woman has a right to an abortion, and, in fact, abortion is a crime,” a narrator explains, before highlighting several excerpts from the draft citing 13th century common law on punishments for ending a pregnancy after the “quickening” of a “foetus.”
The opening sketch then takes viewers back in time to dramatize the “profound moment of moral clarity” that Alito seems to believe should be the basis of our abortion laws in 2022. British actor Benedict Cumberbatch, in a mock medieval pageboy haircut, comes to a “revelation” about the need to criminalize abortion in an age of constant plague, disastrous hygiene, witch obsession, and flat-earth maps. The sketch brilliantly demonstrates the absurdity of reading a 21st century Constitution in light of a legal and scientific history most Americans would not embrace today.
The SNL skit posed an obvious question: Why would it make sense to rely upon 13th century law to decide something so important to half the population of the United States? It’s a question best answered by constitutional law scholars like myself. We all know Alito’s interpretive move—it’s called originalism or textualism—and it is full of theoretical complexity. For the most part, this is legal inside baseball. So why this lesson on originalism on SNL? And why now?
Because Alito’s leaked opinion in Dobbs was a bombshell. It takes up some of the most extreme rhetoric of the anti-abortion movement while citing, as SNL points out, centuries-old and outdated legal ideas. And so when people sat down to read the opinion, even the comedy writers at SNL saw what ordinarily the public pays no attention to: the absurdity of a constitutional methodology called originalism at work.
Originalism has two messages. The first message is to look at the precise text of the Constitution. And on this first message, women (as well as anyone not white and male) are in trouble. There are no words in the Constitution about the things women take for granted as part of their liberty—the right to work, the right to be free of harassment, the right to control their bodies. The second message is to go back in time to 1787 or 1868. Alito’s opinion is all about an understanding of the 14th Amendment in 1868, turning the clock back to a day when women could not vote or practice law and legally dissolved into their husbands. Of course, modern constitutional law scholars and even the members of the court are likely to be embarrassed about this. After all, based on this reading of the Constitution, no woman could practice law, and no woman could sit on the Supreme Court.
This explains one of the oddest characteristics of originalism: For a method aiming for “restraint” in its interpretation of the law, it is opportunistic. Originalism is deployed when it works to achieve particular ends, but is jettisoned when it would yield something the justices think is too odd. Some of the justices seemed to understand the limits and inherent hypocrisy of this method of interpretation. To quote Justice Antonin Scalia: “I am an originalist and a textualist, not a nut.” It would probably be crazy to say women could not sit on courts today. So it is unlikely that the court would apply that history, even if Alito is willing to go back to the 13th century to dispose of Roe.
Lest you think that this is just a new form of originalism, consider the 2008 opinion in District of Columbia v. Heller, which created the right to bear arms and is considered Scalia’s masterpiece. This opinion follows our two originalist “tenets” carefully. First, the text: It parses each piece of the constitutional text into small bits, lops off a preamble about military service (“a well regulated militia being necessary to a free state”), and finds that there is an individual right to bear arms protected by the Constitution. Second, it confirms this textual reading with history from the 19th century, rejecting an extremely long-standing 1939 precedent that had been interpreted to limit the right to bear arms to militia service.
Dobbs, and the debate over the right to terminate a pregnancy, is the perfect opportunity to expose originalism’s Achilles’ heel: women. Why? If originalism is the “only way” to read the Constitution, then women are invisible. Women had no rights in the 13th century or in 1787, when the Constitution was created. Nor did women have any rights when the Constitution was amended after the Civil War in 1868 to add the 14th Amendment. At the end of the 19th century, in a famous case, the Supreme Court decided that women could not practice law because we had no legal existence. If she was married, she was considered a femme couverte, meaning that her legal existence merged with that of her husband.
Quite literally, women were legally invisible. After Dobbs, we women must worry whether we are ever included in the Constitution. At least some forms of originalism—those based on original intent—would say no. Women were most definitely not included at the time of the 14th Amendment’s passage, and therefore all of Ruth Bader Ginsburg’s victories for the equality of the sexes are now up for grabs. Like Roe, the rationale that women should be able to have a bank account without her husband’s permission, or shouldn’t be terminated from a job because of pregnancy, is inconsistent with originalism. By the conservative justices’ logic, these wins for gender equality could be up for reversal.
Originalism lives in part because liberals have no viable alternative. They talk about a “living” Constitution, which is about as bad a public slogan as one could create. No one wants constitutions to change at the whim of a judge—that’s just what happened in Dobbs. What we need to embrace is a citizens’ constitution, one the 21st century reader can understand. No one should have to be a historian of medieval law on “quickening” or 19th century norms to follow it. Constitutional analysis should not skip back to 1868, as if 20th century precedent did not exist. If there is doubt about text or history, follow precedent. The more intimate and far-reaching the decision, the more salient in people’s lives, the more powerful the precedent becomes.
Once citizens’ behaviors and expectations are hardened into reliance for more than a generation, any court switching its view will lose respect, by definition, as just another political institution. If SNL can grasp these concepts with one sketch, so can the average voter.
That women in the United States should enjoy full and equal citizenship is how the average woman would read the 14th Amendment’s provisions on citizenship today. Some on the court might agree, but they must face the argument that no one believed women to be equal citizens in 1868, the time originalism tells us to interpret the 14th Amendment’s words. The real danger of originalism is that it takes us back in time, threatening to upend the progress this country has made toward equality and justice. After all, women had to chain themselves to the White House and go on strike to get the right to vote. It is time for women to lead the charge against a constitutional method that renders them invisible, the veritable femme couverte.